No. 12810 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

EDWARD J. SHELTON, JR., D.O., 

Plaintiff and Appellant, 

BOARD OF MEDICAL EXAMINERS ; and 

THE ATTORNEY GENERAL OF THE STATE 

OF MONTANA, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

William Dee Morris argued, Helena, Montana 

For Respondents: 

John Poston, argued, Special Assistant Attorney 

General, Helena, Montana 

Submitted: January 16, 1975 

Decided : ApR 2 8 1975 

Filed: bp~ 2 TI Ig/'g 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the district 

court, Lewis and Clark County, affirming the Montana Medical 

Board of ~xaminers' decision in refusing to license plaintiff 

Dr. Edward J. Shelton, Jr., to practice medicine and surgery in 

Montana. Plaintiff's application was based on reciprocity, involving the states of Washington, Michigan and Kentucky. 

Dr. Shelton received his Doctor of Osteopathy degree in 

1958 from the College of Osteopathic Physicians and Surgeons at 

Kansas City, Missouri. He applied for a license to practice unlimited medicine and surgery in Montana in 1971. A temporary 

conditional license to practice medicine and surgery was issued 

pursuant to section 66-1027(3), R.C.M. 1947. Such license was 

conditioned upon the information supplied by Shelton being substantiated and verified by the ~oard's investigation and further, 

upon ~helton's promise that he would take the required state examination when given in December 1971. 

The Board made the necessary arrangements for Shelton to take 

the examination in Helena in December 1971. He failed to appear on 

the day the examination was scheduled, but later notified the Board 

he had been too busy to take the examination in December, but 

promised he would do so in June 1972. Again, arrangements were 

made for Shelton to take the examination, but again he failed to 

appear. The temporary, conditional license to practice medicine 

issued to Shelton was allowed to expire in October 1972. 

The First Regular Session of the Forth-Third Legislature of 

Montana amended the Medical Practice Act in 1973. Section 66-1025 

was amended by adding a subsection 6, which provides: 

"~olders of the degree of doctor of osteopathy granted 

in 1955 or before will be certified only on the basis 

of taking and passing the examination given by the department, subject to section 828-1603. Holders of the 
degree of doctor of osteopkithy granted after 1955 will 

be certified in the same manner as provided above for 

physicians." (Emphasis supplied.) 

Because of this legislative enactment, effective March 21, 

1973, Shelton notified the Board he wished to have his application 

reevaluated. The Board again apprised him that his application 

was deficient in several respects. One of these deficiencies 

was that people he had named as personal references did not respond 

to the Board in such a manner as would enable the Board to give 

Shelton a permanent license. The Board also advised him he would 

be required to take the Flex Examination, a standard medical examination given nationally and accepted by a majority of the states. 

The Board stated it would waive the basic science portion of that 

examination. Further, that Shelton would be required to pay the 

$100 fee as required by law and to sign the affidavit on his application, which was necessary for verification. 

On August 21, 1973, Shelton was again notified by the Board, 

this time in writing, that it was refusing to accept his application 

for reciprocity on these four grounds: 

1. Applicant failed to pay the required fee. 

2. Applicant failed to verify his application. 

3. The responses from perms named as references were 

insufficient. 

4. The applicant failed to take the Flex Examination as 

required by the Board. 

Contained in the same notice of nonacceptance of his application 

was a notice of hearing on the matter October-15, 1973 at 10:OO a.m. 

Shelton was in the process of changing attorneys at this time and 

for this reason the hearing was continued several times at ~helton's 

request and was finally held on November 29, 1973. The entire 

transcript of such hearing was presented to the Board at its meeting 

on December 8, 1973. 
The November 29 hearing revealed: Shelton had failed to 

properly verify his application by signing it before a notary; 

he had not paid the $100 fee as required by section 66-1031(2), 

R.C.M. 1947; only one of his references' responses was acceptable, 

the other had been returned with the word "unknowrl" written as an 

answer to many of the questions; and, there was much confusion as 

to ~helton's prior licensing. 

In explanation of the unsatisfactory reference responses, 

Shelton stated he was told to try and use Montana doctors as 

references but he had been in Montana a very short time and there 

just was not sufficient time for Montana doctors to get to know 

him and his qualifications. He later gave four more references to 

the Board at its request, but two of these were returned undelivered. 

The confusion as to ~helton's prior licensing was brought 

on by the fact he was licensed to practice only osteopathy in 

Washington and Michigan. His license with the state of Kentucky could 

not be evaluated, although the Board made several attempts to 

determine exactly what the Kentucky license entailed, and what 

examination was used by the Kentucky Medical Examiners in 1958, when 

Shelton took the examination. The Board was unable to get the 

required information. 

The November hearing further revealed that Shelton had 

practiced in several hospitals in the states where he was licensed; 

that he was admitted to practice in St. James Community Hospital 

in Butte, Montana--the first Doctor of Osteopathy to be granted 

the privilege under the 1973 amendment to section 66-1025, R.C.M. 

1947; he had been trained at the School of Aerospace Medicine and 

later became a military flight surgeon. Shelton was also recommended 

for a program to train to be an astronaut physician, a more sophisticated branch of the air force flight surgeon training. The record 

shows that Shelton is now employed at the Veterans Hospital in 

Miles City, Montana, where he is engaged in nuclear medicine. 
The Montana Board of Medical Examiners reviewed the entire 

transcript and allowed one additional month for Shelton to 

present any additional documentary evidence that he chose to 

present. On January 9, 1974, the Board entered its order and 

notice of nonacceptance of sheltonls application for a license by 

reciprocity. That order was the basis of Sheltonls appeal to the 

district court on February 4, 1974. 

The parties stipulated to the content of the record transmitted to the district court. March Hon . Gordon 

Bennett entered an order affirming the ~oard's decision. Shelton 

filed objections to the order and hearing was set and heard on 

April 5, 1974. On April 15, 1974, the district court entered an 

order overruling sheltonls objections. 

The issues presented for review on appeal are: 

1. Did the Board act within the scope of its constitutional 

and statutory authority in denying Shelton a license by reciprocity 

to practice unlimited medicine and surgery in Montana, and 

2. Was the Board's action in denying the license by reciprocity and the reasons given supported by reliable, probative and 

substantial evidence? 

Section 66-1011, R.C.M. 1947, of the Medical Practice Act, 

states the purpose of the Act: 

"It is hereby declared, as a matter of legislative policy 

in the state of Montana, that the practice of medicine within 

the state of Montana is a privilege granted by the legislative 

authority and is not a natural right of individuals and that 

it is deemed necessary, as a matter of such policy and in the 

interests of the health, happiness, safety and welfare of the 

people of Montana, to provide laws and provisions covering 

the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be 

properly protected against unprofessional, improper, unauthorized and unqualified practice of medicine and to license 

competent physicians to practice medicine and thereby provide 

for the health needs of the people of Montana. I I 

Section 66-1017(1), R.C.M. 1947, then provided that the Board 

of Medical Examiners shall: 
It* * * adopt and promulgate such rules and regulations as the board may deem necessary or proper 

to carry out the provisions and purposes of this 

act which shall be fair, impartial and nondiscriminatory * f: *. 

It is therefore, the duty of the Board to insure: 

"J: * * that the public shall be properly protected 

against unprofessional, improper, unauthorized and 

unqualified practice of medicine and to license 

competent physicians to practice medicine. It 

The Board must decide if an applicant to practice medicine in 

Montana is duly qualified and comes within the mandate given it 

by the legislature. To accomplish this, the Board requires each 

applicant to fill out an application, furnish references, verify 

the application before a notary, and appear before the Board for a 

personal interview. It is the burden of the applicant to supply 

the Board with the necessary information. It is the duty of the 

Board to investigate the information supplied to determine if the 

applicant is qualified to practice in Montana. Section 66-10311, 

R.C.M. 1947, requires each applicant to pay a fee of $100 to 

defray the costs of investigation by the Board. 

There has long been a conflict as to the practice of Doctors 

of Osteopafhy in a medical world dominated by Doctors of Medicine. 

This conflict has finally been resolved in Montana. Section 66-1025 

(6), R.C.M. 1947, states that holders of the degree of Doctor of 

Osteopathy granted after 1955 will be certified in the same manner 

as provided for physicians. That statute also provides the way for 

certification, by either passing the Montana Board Examination, passing 

the federal licensing examination or: 

"(c) A valid, unsuspended, and unrevoked license or 

certificate issued to the applicant on the basis of 

an examination by an examining board under the laws of 

another state or territory of the United States or of 

the District of Columbia or of a foreign country whose 

licensing standards at the time the license or certificate 

was issued were, in the judgment of the board, essentially 

equivalent to those of this state for granting a license 

to practice medicine, if under the scope of the license or 

certificate the applicant was authorized to practice medicine 

in the other state, territory, or country." (Emphasis 

supplied. ) 
Applying all of the above cited laws to the facts of the 

instant case, we find the Board of Medical Examiners acted within 

the scope of its constitutional and statutory authority in denying 

Shelton a license by reciprocity to practice unlimited medicine 

and surgery in the state of Montana. The Board was not acting 

discriminatorily nor capriciously in its denial. 

By failing to supply the Board with the necessary information 

for it to form an opinion as to his medical ability and his moral 

qualifications, Shelton has not met his burden. He has not fully 

cooperated with the Board, even after the Board accepted his initial 

application and gave it full faith and credit, subject to investigation, by the issuance of a temporary license to practice in Montana 

during this period, The fee required of all applicants was not paid. 

The required reference response was not furnished. He failed to take 

the Flex Examination as required, after the Board offered to waive 

the basic science section. The reciprocity requirements from 

Michigan and Washington were not adequate. The Kentucky standards 

at the time he was licensed there could not be satisfactorily demons tra ted . 

Judgment of the district court is affirmed. 

--- 

Justice 

We Concur: 

- b Hon. Arthur Martin, sitting for 

Chief Justice James T. Harrison.